DeFreitas v. Horizon Investment Mgt.. Corp., No. 08-4034 (10th Cir. Aug. 14, 2009); Upshaw v. Ford Motor Co., No. 08-3246 (6th Cir. Aug. 14, 2009); Alexander v. CareSource, No. 08-3880 (6th Cir. Aug. 14, 2009)

At the end of the week, we have comparable outcomes in diverse quarters. From Utah, courtesy of the Tenth Circuit, we have a reversal of summary judgment in an FMLA interference case, while the same opinion affirms summary judgment in a Title VII religious discrimination claim. In Michigan, the Sixth Circuit grants a similarly-divided outcome in a Title VII/Ohio state-law race discrimination case, affirming summary judgment on the discrimination claim but returning the retaliation claim for trial. Finally, also from the Sixth Circuit, we have a reminder that the Federal Rules of Evidence apply with equal force at the summary judgment stage via Fed. R. Civ. P. 56(e).

DeFreitas v. Horizon Investment Mgt.. Corp., No. 08-4034 (10th Cir. Aug. 14, 2009): The employee, a leaser for a real estate management company, was fired -- foolishly, by e-mail -- during her recovery from a hysterectomy. Her manager, Mr. Terry, wrote the following --

"From: James Terry

"Sent: Friday, March 10, 2006 11:44 AM

"To: Nydia de Freitas

"Subject: Ecclesiastes 3

"Nydia,

"I have agonized over this decision for weeks. It has been difficult because the Nydia I know or thought I knew is not the same Nydia that so many others feel they know on site. What I truly hope is that the Nydia I know, will remain my friend, a strong wife and mother to her family and someone that will continue to grow and reach the personal and family goals that you set for yourself.

"We have uncovered so many different issues at both Edison and Park Place, that are expensive mistakes to the owner and our management company, that we need to not just make a change from working at Park Place, but from working at Horizon. You are very talented and I know, when back in the pink of health, will bounce back and secure another job without even a glitch. I know this is a personal setback and a financial strain for a few weeks and am sorry, but . . . you still have a pay check coming next Friday that I will move up to your desired date of receipt if you desire.

"I do not think that I need to list reasons, my desire is not to add salt to this wound, but would like the opportunity to visit with you one on one in the future and allow me to make some suggestions that could make your next job more comfortable, more enjoyable and allow you to continue to grow in this field. It is so important to have your staff, your fellow regional's [sic] and managers and your employers back you to the hilt and I hope the ideas that I might share would offer help in that direction.

. . . .

The employee sued over her termination both under Title VII (for religious discrimination) and FMLA (for interference). The former claim was based on the employer (poised on the Utah/Nevada border) having a heavily LDS/Mormon cast, and plaintiff being among the few Catholics. [Proofreader note: the opinion misspells the name as "Morman" on page 1.] That claim gets only a few pages in the Tenth Circuit opinion, the panel holding that something akin to the same-actor inference operated here: "[H]er Catholicism was known throughout her tenure with Horizon, yet Mr. Terry had treated her well. In some 21 months he had given her two raises-the second of which was more than a 1/3 increase in salary-and had given her praise as well as increasing responsibilities. Ms. DeFreitas points to nothing with religious overtones that occurred during her final months with Horizon that could account for any religious animosity by Mr. Terry toward her. In light of this history, it simply beggars the imagination to believe that she was fired on religious grounds."

But the FMLA claim presented differently, in the panel's estimation. First, the evidence that her termination was related to her leave was startlingly clear: "The timing here is particularly suggestive. Ms. DeFreitas's termination occurred just one day after she told Mr. Terry that she would need to take a full six weeks off and could not return sooner. Moreover, Mr. Terry later told Ms. DeFreitas's prospective employer that the reason for her departure was 'illness.'" Moreover, although the employer defended that the plaintiff was terminated for purely performance related reasons, there was scarce and sharply contradictory evidence of the plaintiff's recent employment history, and all of the negative evidence emerged only during her short absence.

The panel also singles out Mr. Terry's naivete in handling the situation:

"Finally, we note the elephant in the room. One reason that a reasonable jury could reject Defendants' assertions regarding the grounds for firing her is that there appears to have been another ground for her firing, a very simple, commonsensical one-namely, that she was missing too much work. This is hardly an unheard-of reason for an employer to discharge an employee. Indeed, the FMLA was enacted because employers had found it in their economic selfinterest

to fire employees who missed too much work for medical care or other reasons now addressed by the FMLA. It would be eminently reasonable to believe that an employer who was ignorant of the FMLA-as Mr. Terry admitted he was before Ms. DeFreitas complained of her firing-would engage in the very practice that the FMLA was enacted to prevent. Recall that Mr. Terry told

Ms. DeFreitas's next employer that she had lost her job because of 'illness.' Accordingly, we conclude that there is a genuine issue of fact concerning whether Horizon would have fired Ms. DeFreitas regardless of whether she took FMLA leave."

Upshaw v. Ford Motor Co., No. 08-3246 (6th Cir. Aug. 14, 2009): The employee, African-American, was denied a promotion, according to the employer because of defective performance ratings that benefitted the white candidates. The district court found, and the Sixth Circuit affirms, that the employee failed to raise a genuine issue of material fact about whether the company knowingly relied on faulty data to advance non-minorities.

On the retaliation claim, though the panel majority (with Judge Batchelder dissenting) holds that the employee presented a genuine issue of material fact on causation. Plaintiff had filed seriatim EEOC charges over a multi-year period, and the company over the same period investigated her performance with increased scrutiny. It was

"undisputed that [her managers] Hughes-Sharp and Brooks began developing a timeline of Upshaw's employment in fall 2003, and that they requested that other Ford employees submit information about Upshaw's complaints to Human Resources. Ford's heightened scrutiny is evidenced by a December 6, 2004 email from Ford employee Mark Striker to Hughes-Sharp, stating: 'I would like to talk to you about this. I would assume that this is the type of documentation that you are interested in with regards to Upshaw. It seems to me that everyone has problems dealing with Upshaw. Something needs to be done with her, or we will have good people leaving, and we will still be dealing with her.'"

The panel majority also finds that she presented a genuine issue of material fact on pretext:

"Upshaw has raised a genuine issue of material fact as to whether Ford's proffered reasons for her termination were contrived following her many EEOC charges and the filing of this lawsuit. As a threshold matter, Upshaw has established that two of Ford's four proffered reasons for terminating Upshaw-safety violations and her failure to timely resolve union health and safety complaints-do not typically warrant any formal discipline at Ford's Sharonville plant, let alone termination."

The plaintiff painstakingly established for each violation that the employer's evidence was scanty and tainted, or that the "offense" was seldom the subject of discipline. Thus, "although Ford is entitled to terminate an employee for an actual violation of its internal policies, Upshaw has introduced evidence suggesting that these 'actual violations' were nothing more than 'trumped up' charges."

Alexander v. CareSource, No. 08-3880 (6th Cir. Aug. 14, 2009): Here, the plaintiff (an African-American) was not hired as a claims adjuster; a white candidate was hired instead. Her theory was that during the interview process, she was treated more harshly than the other candidates. At the summary judgment stage, the employee's counsel submitted the her deposition transcript and a number of documents (including of her Title her resume) that were not authenticated. On defendant's motion, the extraneous exhibits (other than the deposition transcript) were struck and summary judgment was granted.

The Sixth Circuit affirms. Starting first with the exhibits, the panel reiterates the commonplace principle that submissions in opposition to summary judgment need not themselves be in a form admissible at trial, the evidence in substance must be admissible. Thus, hearsay and unauthenticated documents have no place in an opposition brief. Plaintiff's EEOC charge, for instance, was inadmissible as evidence that the plaintiff had superior qualifications, as the charge lacked supporting facts and was held conclusory. The panel also reminds us that a deposition excerpt is not authenticated without the reporter's signature page attached (although defendant did not object to this omission). The unauthenticated documents (letters, e-mails, resume) are, likewise,held properly excluded by the district court.

The Ohio Civil Rights Commission's "probable cause" finding, although admissible under Fed. R. Evid. 803(8) (as a report of a public agency), deserves no weight according to the panel because the agency had no additional evidence before it: "In this case, there was no agency 'hearing,' the investigation lingered for over a year before the report was completed, and there is no information in the record as to the evidence available to the agency. It appears, however, the district court considered at least all of the same evidence examined by the OCRC team leader and arrived at its own conclusion. Because the lower court considered the same facts as the agency, the differing conclusion in the agency report does not by itself establish a material issue of fact, and there is no error by the district court in not assigning evidentiary weight to that conclusion."

Without evidence in the record that plaintiff's qualifications were equal to or better than the white candidates, or that she was treated more harshly in her interview, the panel swiftly affirms summary judgment.